Actual Paper Link

Abstract:

This paper will discuss the phrasing of the First Amendment and how this interpretation potentially affects undocumented immigrants, particularly Mexican immigrants, and their need to obtain First Amendment protection especially now during President Donald Trump’s administration. This paper will argue in favor of protection towards those who express their beliefs, and opinions towards the American society while still not being considered part of an exclusive group called “citizens” and “residents,” but taking part in today’s American economic society nonetheless. This issues relative importance in today’s society will be portrayed by the case of Sergio Hernandez, and its scheduled revision shortly after the presidency of Donald Trump, and his new appointed Justice Neil Gorsuch.

Sergio Hernandez was shot at the Border by a border patrol official. He held no substantial ties to U.S. land, and video shootage captured the events of the incidence concluding that the border patrol agent had actually not been acting in self defense, but rather shot the boy with malintention from a distance of 60 feet. This case hearing has recently been scheduled for revision by the U.S. Supreme Court once the new U.S. Justice, Neil Gorsuch, appointed by recently elected President Trump, comes into office. This case will reflect the First Amendment meaning in present day America with regards to social and political interpretations. With the death of Antonin Scalia, and his quoted statement of “the people in a political context,” and the case of Verdugo-Urquidez versus the Supreme Court(1990) implementing the Supreme Court decision that the term “the people” used by the U.S. Constitution refers to, “a class of persons who are part of a national community or who have developed sufficient connections with this country to be part of that community.” In this way, Antonin Scalia’s view on “the political context,” refers then to those who have created sufficient connections within this country. Additionally, the First Amendment was created to limit government power rather than a limitation of “the people.”

This issue is important today because in 2015 the Department of Justice stated that, undocumented immigrants who have not lawfully been admitted to the U.S. hold no rights to the First Amendment within the case of Pineda Cruz v. Thompson(2015). Michael Kagan, professor of Law and Director of the Immigration Clinic in the University of Nevada, argued that this particular case with a group of detained woman in Korens, Texas would have been ruled unconstitutional had their national status been different. In this case the woman  who had silently protested by not eating for five days regarding their considitions, the detention center then punished the woman for their hunger strike threatening them to seperate the mother and children. The woman then claimed this was a violation of their first amendment rights, which the Court case denied on the basis of the Department of Justices statement. Professor Kagan in his analysis of the case went on to explain how the case of Citizens United v. FEC shows doctrinal support against the claim denying First Amendment rights based on identity rather than content of speech. This claim in its context would affect existing undocumented movements seeking rights, marching for justice, and limiting their voice to one of fear to reporting exploitation from employeers, or from racial discrimination treatments. However, the stance taken by the Department of Justice may have been largely influenced by the possibility of the new president elect becoming Donald Trump who held many racial disciminating undertones. This political stance signals an increase in discomfort towards the topic of immigration, and the social implications which arise from a political events such as the election of a new president.

Therefore, the election of President Donald Trump, has signaled large implications towards the social acceptance, or rejection towards those who hold an undocumented Mexican status, particularly for the purpose of this paper, in the U.S. With the election of Donald Trump there has been a rise in occurances of immigration enforcement, and racial discrimination which is often aimed at Mexican immigrants. Increased proposals towards mass deportations, at one point, proposals towards an increase of aggressive enforcement of immigration laws empowering local law enforcement to perform the functions of immigration officers, and the proposal for a Wall at the Border of Mexico has helped increase the racial tension, and distinction between Mexican undocumented immigrants, and the American society. This does not only affect Mexican undocumented immigrants, but also includes those who look Mexican being affected. CNN recently wrote an article with regards to Trumps proposal of local law enforcement increasing their functions empowering them to act as law enforcement officers. In this article CNN adds a statement by the Department of Homeland Security addressing that the policies set forth by Trump are not common functions of an expansion of existing laws.The differrence in execution is shown by the Obama administration where President Obama sought to target three groups in deportations including: convicted criminals, public safety threats, and those who recently crossed the border illegally.They explain this with policies such as: the ebuilding of the wall in the Southern border, and detaining and deporting individuals who have any sort of criminal record including DUI’s.

By proposing to increase aggressive enforcement of immigration laws by empowering local law enforcement to perform the functions of immigration officers exclusively. This proposal shows a repetition of past events, and how there is a dramatic politcal change in power shifting towards affecting American society in a social context. Compared to SB 1070, this proposal signals a clear targetted group because of Donald Trumps other proposal seeking to create a wall aligning with the southern border. SB 1070 allowed police to stop those who seemed “reasonably suspicious” of being illegal, and to some extent this led to the individuals deportations if they were not carrying proper identification stating that they were in the U.S. legally. SB 1070 was ruled unconstitutional according to Justice Kennedy because it required legal immigrants to carry registration documents at all times, and allowed police officials to arrest anyone who seemed suspicious of being an illegal immigrant according to the Washington Post. Without the voice of Mexican (un)documented immigrants in these cases, and their protests of these laws the bill would’ve still been ongoing, and their freedom of expression would have largely been limited because they would’ve been targeted as illegals by their skin color. Therefore, to adress President Trump’s proposed immigration laws have an undertone of previous laws such as SB 1070 which have been found unconstitutional. Today these laws are targetted at mexican undocumented immigrants in particular because they made up ⅓ of the immigrant population in the United States in 2015 according to the Migration Policy Organization. To put this into perspective, in the U.S. there are 61 million immigrants residing here, and of those 61 million immigrants there is an estimate of 15.7 million undocumented immigrants according to the Washington Examiner in 2016. So, it is important to consider undocumented Mexican immigrants to be part of “the people” which the First Amendment addresses in order to protect them from exploitation, and in order to more strongly believe one’s ideals which comes from the idea of, “freedom for the thought[s] that we hate.”

It is also important to consider this group as being considered part of “the people”  with the inclusion of First Amendment rights due to a historical consistency of the U.S. denying these rights to other minority groups while, at times, also economically exploiting them. These groups include: African Americans, and Chinese Immigrants. African Americans were were not regarded as being part of “the people” which the United States intended to protect when the U.S. created the Constitution largely because of racial discrimination, and slavery; this point later made law interpreters conclude that because they did not originally have rights as “the people” they could not gain rights from the First Amendment. Aditionaly, because they could not claim rights from the First Amendment this group was largely exploited for the gain of the U.S. in economical terms because they provided cheap human labor rather than having the U.S. use laborers who would demand a higher pay. African American’s lack of rights under the First Amendment also denied them right to court hearings because they were not considered citizens according to the Constitution, which connects to the case of Pineda Cruz v. Thompson, such as was seen in the case of Dred Scott. The group following African Americans as a minority were the Chinese immigrants who were denied first amendment rights by not being able to testify in courts which helped racial discrimination continue towards this certain group. To put the implication of this into perspective: Vincent Chin, who was a Chinese immigrant was murdered by two white males, and the court only fined the individuals $3,780 each and two years probation because Chinese immigrants could not testify in courts and were not considered to be part of “the people” who were protected under the First Amendment rights. Therefore, by not providing a minority group First Amendment rights this invites racial injustice, and economical exploitation to take place. Therefore, this has shown that there is a connection between a country willing to exploit laborers and reap economic benefits while denying those helping the ecnomy a basic human right of freedom of speech.

By basic human right, I will address Steven J. Heyman’s, professor of law at the University of Chicago and Supreme Court editor of Harvard Review(1984) view on the First Amendment. In his book, “Freedom of Speech and Human Dignity,” he takes into account how the First Amendment was founded on “the basis for respect for autonomy, and dignity of human beings” with regards to eighteenth century view of Americans believing freedom of speech was a natural right of mankind, and was essential to the Republican government. If this is the case in which America’s First Amendment was founded upon with the views of John Locke incorporated than this means that African Americans as human beings, and Chinese immigrants should have been allowed to hold First Amendment rights by the simple ideal that they were human. However, interpretations have caused a blurring in law for which when proposing a solution to this problem, of addressing who should be considered part of “the people” in regards to the Frist Amendment, should be taken into account.

With this being said, Mexican undocumented immigrants who have substantial ties to the U.S. should be given and considered to be part of “the people” in regards to the First Amendment because the U.S. has benefitted economically from this group while denying them First Amendment rights if we go off of the Department of Justice’s announced statement. Economically, Mexican undocumented immigrants do not cost the state $113 billion dollars as Donald Trump stated in one of his presidential elections as an “alternative fact.” Rather of the 11 milllion undocumented immigrants their contribution in taxes every year is $11.74 billion dollars while paying eight percent of their incomes in state and local taxes while America’s top 1% of taxpayers pay only five percent of their income, according to the Institute of Taxation and Economic Policy(ITEP). ITEP also stated that granting this undocumented immigrants legal status to the U.S. for work purposes would increase state, and local tax contributions by $2.18 billion dollars a year. However, I am not advocating for the granting of their legal status, but rather their consideration as being part of “the people” under the Constitution with regards to the First Amendment. The cost to the U.S. of deporting the majoirty of these undocumented immigrants would be $30 billion dollars which would come out of increased tax payer money used from economic cuts to other departments of the nation, because this is also one of Donald Trump’s goal: to cut spending on less important aspects to the government including health care, and women reproductive services. Therefore, to reap from the benefits of this undocumented Mexican immigrant group with substantial ties to the U.S. and deny them basic rights such as the First Amendments right to freedom of expression to protect against exploitation, racial discrimination, and unecessary force by government officials is to deny them the basic human rights which the U.S. constitution was founded upon.It is necessary to consider this group as being “part of the people” for which the First Amendment is inclusive of because they have helped built up the U.S. economy, and provided to the wealth of the U.S.

This issue is of importance because of an unexperienced political President today, Donald Trump, and his choice of cabinet members, which makes this topic show its urgency. Most of his cabinet members, additinally, lack a sense of expertise in political affairs with regards to 10 members specifically: Rex W. Tillerson(State), Scott Pruitt(E.R.A.), Linda McMahon(small business), Wilbur Ross(commerce), Rick Perry(energy), Ben Carson(Housing), Stephen K.Bannon(Chief Strategist), Jared Kushner(Senior Advisor/Husband of Ivanka Trump), Kellyanne Conway(Counselor), and Carl Icann(Regulatory Czar). Two other members are qualified for the position, but carry heavily racist undertones which pose a threat to this issue if undocumented immigrants are regarded to hold no rights under the First Amendment Constitution during Donald Trump’s Presidency. These members include: John F. Kelly(Homeland Security), and Jeff Sessions(Attorney General). Therefore, Trump’s Presidential chosen cabinet out of twenty eight carries twelf inexperience political individuals, some big time money moguls, or with regards to immigration: individuals who openly express themselves with racist undertones. Because of his cabinet picking, and with regards to his plans of mass deportations and the increase of racial discirimination incidents occurring in Trump’s first one hundred days in office it is essential to address this question of whether undocumented immigrants fit into the description of “the people” which the First Amendment address.

With regard to his new appointed court Justice, Neil Gorsuch, who is 40 years old and successor to Antonin Scalia, his verification and appointment to court will hold large implications towards different social issues such as the case of Hernandez v. Meza which is scheduled for a reheraring once Gorsuch is officially appointed to court in April. If his decision states in anyway that undocumented immigrants hold no constitutional rights under the First Amendment, or that they are not entitled to a Court hearing, which shouldn’t occur according to Turner v. Williams(1904) because they are still entitled to the Due Process law under the Constitution, then this would impact previous court cases holding similar court standings such as that of Anastacio Hernandez in 2010. The decision of Neil Gorsuch would imply a new pavement of social change, and political difference if his case decision hold’s large implications towards undocumented immigrants, and other politically important issues today including: womens reproductive rights, issues regarding housing, and transgender rights to certain bathroom rights. Neil Gorsuch’s stance is heavily Originalist with a strict view on the constitution as a stable from the time of its enactment rather than a guiding changing document. This means that his view on contraversial issues such as abortion, and transgender rights would be largely conservative, and  against these issues.

The case of Hernandez v. Meza with regards to the death of a Mexican boy, age 15, accounts family being entitled to a court hearing which previously dismissed the claims against all defendants. However, a panel of the Fifth Circuit judges reinstated the action against Mesa, stating the family was entitled to a trial, and that the killing of the boy amounted to a violation of the Due Process Clause in the Fifth Amendment which states that no one shall be deprived of life, liberty or property. By the court’s initial dismissal of the case, a conflicting view is regarded with the First Amendment rights, and who this legal statement entitles. This is because of the court’s initial hesitance to accepting the case hearing. The First Amendment states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Additionally, the Fifth Amendment states that no person shall be deprived of life, liberty, and property. For this instance, I would like to tie the connection between the First and Fifth Amendment for which they both address an individual and community connection with a multiple set of “person(s)” makes up part of “the people,” and who these rights are meant for. This urges a response with regards to the problem of court cases involving undocumented immigrants in the U.S. with substantial ties, and freedom of speech in its necessity towards protecting inequality, corruption, racism, and discrimination.

The implication of Sergio Hernandez’s case would impact cases such as Anastacio Hernandez’s because both cases took place at the Mexican Border, and both held strong implications towards First Amendment rights to unjustice done due from racial discrimination. The difference between both cases, however, is that Anastacio Hernandez held substantial connections to the United States, and had been working in the U.S. for the past ten to fifteen years clearly showing economical, and susbstantial ties to the U.S. with regards to holding a family here. Therefore, by the First Amendment wording and interpretation of “the people” as holding susbstantial ties to the U.S., and he was deserving of the Constitutional rights of the First Amendment. Anastacio Hernandez had pleaded with border patrol officials to “stop,” tasing him and held little resistance according to camara footage of the event. This instance could show an implication towards the impact of restricting undocument immigrants rights to Freedom of Speech in the form of court cases looking the other way despite camara footage showing a clear racial discrimination implication while the ofendent doesn’t show any aggresive response apart from asking government officials to “stop.”

Therefore, my claim in the case of Sergio Hernandez, and his implications to Freedom of Speech while being able to take a border patrol agent to the Supreme Court arises the question of his substantial ties to the U.S. If his case is taken into the Supreme court then he will have obtained First Amendment rights even though he holds no substantial ties to the U.S. in any form which is shown with his lack of residency in the country at all, or in an economical contributing form. Turner v. Williams(1904)concluded that “an excludable alien is not entitled to First Amendment rights because [he] does not become one of the people to whom these things are secured by our Constitution.” So, to say that a member who holds no substantial ties to the U.S. in any form, including economical ties or family ties, holds First Amendment rights in the U.S. but not undocumented immigrants is to say that undocumented immigrants, although, contributing to the nation in an economic form, and residing in the nation while following the laws, with the exclusion of their illegal entrance to the U.S., are not of priority even though they have helped shape the nation in economical, and labor forms. Therefore, how is it fair for undocumented immigrants to have no regard as being part of “the people” which the U.S. includes in the First Amendment rather than someone who holds no ties to the U.S. Anastacio Hernandez’s case should be revisited allowing him to obtain First Amendment rights, and point out the injustice of the case.

This issue with regards to undocumented immigrants, and their rights under the phrase “the people” has been addressed before with cases such as: Turner v. Williams(1904), United States v. Verdugo, Heller(2008), Mariano Meza(2015), and INS vs. Lopez-Mendoza(1984); however, the importance of this issue today is because of the Department of Justice’s statement in Pineda Cruz v. Thompson(2015) claimed that Undocumented immigrants hold no constitutional rights under the First Amendment because they are not part of “the people” which the Constitution intended to protect. This adds on to the Presidency of Donald Trump, and his increased policies towards undocumented immigrants.

Therefore, I believe that there should be a legislative comprehensive immigration reform created in order to address this issue, and give individuals with substantial ties to the U.S. rights as part of “the people” in the First Amendment. This I believe, would be the most effective method to address this problem because by making the proposal a legislative comprehensive immigration reform you would allow states the opoortunity to implement such a decision if they see this issue to benefit their country, or to help their communities. Additionally, it would allow for those states opposing this reform to disregard its implications, and not address this issue. In this way, I believe states with a majority of immigrant influx would be lenient to this proposal. By creating a legislative comprehensive reform it would also allow a consistency of interpretation because of similar laws being created in the states, and social responce to the reform. However, with a proposal towards a national law or national comprehensive immigration reform this would create a new difficulty for lawyer and judges to interpret with new and unfamiliar concepts which could be interpreted in a variety of ways, according to Steven J. Heymen. This proposal for a national law would then reach no conclusion with regards to the a consistency of interpreting the law seeing as how every state varies in social norms, and the feelings towards immigration are susbstantially different in states like: California, and Arizona. On a different scale, to propose an amendment to the Constitution in regards to this issue would be futile, and would not be considered by law officials at all because of the current issue regarding immigration, and the vast majority of the House of Representitives being in power which would limit any sort of national passage of an immigration reform. However, even if an amendment was passed this would guarantee nothing because if you look at the Woman Movement, and their acheivement of the 19th Amendment(1920) leading to their voting rights because they wanted an inclusion in the Constitutional in the Equal Protection Clause mentioned in the 14th Amendment, but they did not gain this protection until 1971 with the case of Reed v. Reed. Additionally, African American’s wanted to gain a voice by the 15th Amendment(1870), but they did not gain an end to segregation, or obtain a sense of equality until the 1960s. Therefore, an amendment would not be suitable to address this issue today because it would be interpreted in a variety of ways, and the initial purpose for its creation may not be addressed for a couple of year until there is traces of inequality long engraved in our social and political communities. With regards to a social and legal throey being proposed towards this issue I believe we could follow this proposal; however, we shouldn’t do this because that is what our society has been doing or the past fifty or so years when Mexican Immigration began to rise, and even with mass immigrant numbers influx from other parts of the world. To propose a theory would not address the urgency of this issue in today’s society, but rather address it, and leave the issue forgotten behind closed books until there is a serious threat to safety, and taking advantage of an undocumented person while still claiming the Constitution protect human autonomy, and dignity with regards to “the people,” but not giving rights to those it reaps economic benefits from.

In the proposal for such a legislative comprehensive immigration reform bill it will be essential to address this issue of who “the people” entitles, and ideally it would involve undocumented immigrants with regardst to the first ammendment who hold substantial ties to the U.S. and economically help the United States. This proposal would; however, not include criminals, apart from their first and only misdemeanor being that they entered the U.S. illegally which I do not state them as criminals in this sense, who have been arrested with a series of felonies. I am not stating that this proposal is perfect, or complete. I am stating, however, that if a legislative comprehensive reform bill where to be enacted this issue should be regarded and addressed. I also believe that a legislative comprehensive reform bill would be the best option to give this problem a solution while maximizing state responses to such a proposal. This issue is of importance, particularly today because of President Donald Trump’s administration, and the only response to combat against Presidential and Federal power is enacting a state power, by the use of a reform bill which will give each state the freedom to respond to certain proposed categories of this proposal while still being able to deny those they don't agree with. I acknowledge that this proposal isn't perfect; however, it is a starting point towards addressing this issue which should be held at importance at a national level, but to not complicate things further address this issue at a legislative level to not disengage to the initial purpose of the legislative immigration reform bill in terms that each state will hold acceptable.